78S30730 DAK-F
By: Janek S.B. No. 28
A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to mineral dusts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 90 to read as follows:
CHAPTER 90. CLAIMS INVOLVING EXPOSURE TO ASBESTOS OR SILICA
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Chest x-ray" means chest films that are taken in
accordance with all applicable state and federal regulatory
standards and in the following two views:
(A) posterior-anterior; and
(B) lateral.
(2) "Physician board-certified in internal medicine"
means a physician who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal Medicine.
(3) "Physician board-certified in occupational
medicine" means a physician who is certified in the subspecialty of
occupational medicine by the American Board of Preventive Medicine
or the American Osteopathic Board of Preventive Medicine.
(4) "Physician board-certified in oncology" means a
physician who is certified in the subspecialty of medical oncology
by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
(5) "Physician board-certified in pathology" means a
physician who holds primary certification in anatomic pathology or
clinical pathology from the American Board of Pathology or the
American Osteopathic Board of Internal Medicine and whose
professional practice:
(A) is principally in the field of pathology; and
(B) involves regular evaluation of pathology
materials obtained from surgical or postmortem specimens.
(6) "Physician board-certified in pulmonary medicine"
means a physician who is certified in the subspecialty of pulmonary
medicine by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
Sec. 90.002. PULMONARY FUNCTION TESTING. (a) In this
chapter, "pulmonary function testing" means spirometry, lung
volume testing, and diffusing capacity testing performed using
equipment, methods of calibration, and techniques that meet:
(1) the criteria incorporated in the American Medical
Association Guides to the Evaluation of Permanent Impairment (5th
Ed.) and reported as set forth in 20 C.F.R. Part 404, Subpart P,
Appendix 1, Part (A), Sections 3.00(E) and (F); and
(2) the interpretative standards set forth in the
Official Statement of the American Thoracic Society entitled "Lung
Function Testing: Selection of Reference Values and Interpretative
Strategies," as published in 144 American Review of Respiratory
Disease 1202-1218 (1991) and 152 American Journal of Respiratory
and Critical Care Medicine 1107-1136; 2185-2198 (1995).
(b) Pulmonary function testing must be performed under the
supervision of and interpreted by a physician who is currently
licensed in this or another state of the United States and
board-certified in pulmonary medicine, and whose license or
certification is not on inactive status. Each subject must be
tested with and without inhaled bronchodilators, with the best
values taken.
(c) Predicted values for spirometry and lung volume shall be
those published by Morris, Clinical Pulmonary Function Testing, 2nd
Edition, Intermountain Thoracic Society (1984). Predicted values
for diffusing capacity shall be those published by Miller et al.,
127 American Review of Respiratory Disease 270-277 (1983), and
shall take appropriate account of smoking history.
Sec. 90.003. CLAIMS. This chapter applies only to claims
alleging personal injury or death caused by exposure to asbestos
fibers or silica.
[Sections 90.004-90.050 reserved for expansion]
SUBCHAPTER B. INACTIVE DOCKET FOR CLAIMS INVOLVING EXPOSURE TO
ASBESTOS OR SILICA
Sec. 90.051. APPLICABILITY OF SUBCHAPTER TO CLAIMS
COMMENCED ON OR AFTER JULY 1, 2003. This subchapter applies only to
claims alleging personal injury or death caused by exposure to
asbestos fibers or silica that are commenced on or after July 1,
2003.
Sec. 90.052. ADOPTION OF RULES BY SUPREME COURT. (a) The
supreme court shall adopt rules to provide for the creation of an
inactive docket for claims alleging personal injury or death caused
by exposure to asbestos fibers or silica.
(b) The supreme court shall adopt rules under this
subchapter on or before March 1, 2004.
Sec. 90.053. MANDATORY GUIDELINES. Rules adopted under
Section 90.052 must comply with the mandatory guidelines
established by this subchapter.
Sec. 90.054. MESOTHELIOMA OR OTHER MALIGNANCY. (a) Rules
adopted under this subchapter must provide that the inactive docket
procedure under this subchapter does not apply to a claim alleging
personal injury or death caused by exposure to asbestos fibers or
silica if the basis for the claim is a diagnosis of mesothelioma or
other malignancy allegedly caused by exposure to asbestos fibers or
silica.
(b) Rules adopted under this subchapter must provide for the
preferential setting of hearings and trials for a living claimant
alleging personal injury caused by exposure to asbestos fibers or
silica if the basis for the claim is a diagnosis of mesothelioma or
other malignancy caused by exposure to asbestos fibers or silica.
Sec. 90.055. PLACEMENT ON INACTIVE DOCKET. (a) Rules
adopted under this subchapter must provide that a claim alleging
personal injury or death caused by exposure to asbestos fibers or
silica other than a claim described by Section 90.054(a) must be
placed on the inactive docket when the claim is filed.
(b) Rules adopted under this subchapter must provide that a
claim may be removed from the inactive docket only if it meets the
medical criteria for removal established under this subchapter.
Sec. 90.056. LIMITATIONS TOLLED. Rules adopted under this
subchapter must provide that the limitations period for a claim
assigned to the inactive docket must be tolled as of the original
date on which the claim was filed.
Sec. 90.057. DISCOVERY AND OTHER COURT ORDERS. Rules
adopted under this subchapter must provide that a claim on the
inactive docket is not subject to any order of the trial court in
which the claim was originally filed affecting active claims
involving exposure to asbestos fibers or silica, including
discovery orders, and that discovery may not proceed on an inactive
claim until the claim is removed to the active docket.
Sec. 90.058. REMOVAL TO ACTIVE DOCKET. (a) Rules adopted
under this subchapter must provide procedures for the removal of a
claim from the inactive to the active docket on a showing that the
claimant meets the medical criteria for removal established under
this subchapter. The rules must assure a reasonable and adequate
time for discovery and trial preparation consistent with the Texas
Rules of Civil Procedure.
(b) Rules adopted under this subchapter must establish
medical criteria for removing a claim alleging exposure to asbestos
fibers or silica from the inactive to the active docket. The rules
must provide that a claim may only be removed based on objective
medical criteria indicating significant physical impairment caused
to a reasonable degree of medical probability by exposure to the
asbestos fiber or silica. The medical criteria must be appropriate
and reasonable, such as those used in the American Bar Association
Asbestos Litigation Policy.
(c) For a claim alleging respiratory disease, rules adopted
under this subchapter must provide that the claim may only be
removed from the inactive to the active docket based on objective
medical criteria indicating significant respiratory impairment
caused to a reasonable degree of medical probability by exposure to
the asbestos fiber or silica. The medical criteria must be
appropriate and reasonable, such as those used in the American Bar
Association Asbestos Litigation Policy.
(d) Rules adopted under this subchapter must provide that,
if the claimant is unable to meet criteria established under
Subsection (c) for removal from the inactive docket, the claimant
may qualify for removal by submitting an additional report, by a
physician with a medical license in this or another state of the
United States who is board-certified in pulmonary, internal, or
occupational medicine, and whose license or certification is not on
inactive status, that:
(1) states that the claimant has a chest x-ray that
satisfies the medical criteria established by the rules for the
purposes of this subsection;
(2) states that the claimant has restrictive
impairment from asbestosis or from exposure to silica and states in
detail the specific pulmonary function test findings that the
physician is relying on to establish that the claimant has
restrictive impairment;
(3) includes the reports and readouts from all
pulmonary function, lung volume, diffusing capacity, or other
testing relied on for the report's conclusions, provided that the
tests comply with equipment, quality, and reporting standards
established by the rules for the purpose of this subsection; and
(4) states the physician's conclusion that the
claimant's medical findings and impairment were not more probably
the result of other causes revealed by the claimant's employment
and medical history.
(e) Rules adopted under this subchapter must provide that if
the claim alleges death caused by exposure to asbestos fibers or
silica, the report under Subsection (d) may be made with a quality 2
chest x-ray if a quality 1 chest x-ray is not available.
(f) Rules adopted under this subchapter must provide that a
claim shall be removed based on a diagnosis of mesothelioma or other
malignancy allegedly caused by exposure to asbestos fibers.
(g) Rules adopted under this subchapter must provide that a
physician who is currently licensed in this or another state of the
United States and currently board-certified in occupational
disease, oncology, pulmonary medicine, pathology, or internal
medicine, and whose license or certification is not on inactive
status, must perform the appropriate testing and physical
examination and render the diagnosis necessary to support removal
of a claim from the inactive to the active docket.
(h) Rules adopted under this subchapter must provide that a
currently certified B-reader shall perform all x-ray readings
necessary to support removal of a claim from the inactive to the
active docket.
Sec. 90.059. INACTIVE DOCKET INFORMATION. (a) Rules
adopted under this subchapter must provide for the collection and
dissemination of information regarding all claims assigned to and
removed from the inactive docket in each trial court in this state.
(b) Rules adopted under this subchapter must provide that
the information collected contain basic information about the
claim, including the name of the claimant and the cause number.
(c) Rules adopted under this subchapter must assure that the
appropriate filing fee is or has been paid with respect to each
individual claim to which this subchapter applies. The rules must
also provide that a reasonable portion of the fee be used to support
the administration of the inactive docket created by this
subchapter.
Sec. 90.060. BANKRUPTCY TRUSTS. (a) Rules adopted under
this subchapter must provide that any claimant with a claim on an
active or inactive docket in a trial court in this state shall be
eligible to participate in any bankruptcy trust established to
compensate claimants alleging injury from exposure to asbestos
fibers or silica.
(b) It is not the intent of this section to prevent a
claimant from participating in a bankruptcy case commenced under
Title 11, United States Code.
[Sections 90.061-90.100 reserved for expansion]
SUBCHAPTER C. PENDING CLAIMS
Sec. 90.101. APPLICABILITY OF SUBCHAPTER TO CLAIMS
COMMENCED BEFORE JULY 1, 2003. This subchapter applies only to
claims alleging personal injury or death caused by exposure to
asbestos fibers or silica that are commenced before July 1, 2003.
Sec. 90.102. MESOTHELIOMA OR OTHER MALIGNANCY. This
subchapter does not apply to a claim alleging personal injury or
death caused by exposure to asbestos fibers or silica if the basis
for the claim is a diagnosis of mesothelioma or other malignancy
allegedly caused by exposure to asbestos fibers or silica.
Sec. 90.103. MANDATORY DISMISSAL. (a) After the 90th day
after the effective date of this chapter, a court shall dismiss
without prejudice, on motion by the defendant, a claim alleging
personal injury caused by exposure to asbestos fibers or silica
that was commenced before July 1, 2003, if the claimant cannot show,
in relation to the alleged personal injury:
(1) an examination by a physician who is currently
board-certified in occupational disease, oncology, pulmonary
medicine, pathology, or internal medicine and whose medical license
or certification is not on inactive status;
(2) a specific medical diagnosis by the examining
physician described in Subdivision (1) that the personal injury
alleged by the claimant is the result of a disease a producing cause
of which is asbestos or silica and the results of any test necessary
to establish the medical diagnosis;
(3) a chest x-ray;
(4) pulmonary function testing; and
(5) a detailed occupational history and history of
exposure to asbestos or silica.
(b) After the 90th day after the effective date of this
chapter, a court shall dismiss without prejudice, on motion by the
defendant, a claim alleging death caused by exposure to asbestos
fibers or silica and that was commenced before July 1, 2003, if the
claimant cannot show, in relation to the death, a statement by a
physician described by Subsection (a)(1) stating to a reasonable
degree of medical probability that the death is the result of a
disease a producing cause of which is asbestos or silica.
Sec. 90.104. REFILING CLAIM; TOLLING OF STATUTE OF
LIMITATIONS. (a) A claimant whose claim is dismissed under Section
90.103 may refile the claim if the statute of limitations for the
claim has not expired.
(b) The statute of limitations for the claim is tolled for
the period beginning on the original date the claim was filed and
ending on the date the claim is dismissed under Section 90.103.
Sec. 90.105. LAW APPLICABLE TO REFILED CLAIM. A claim
dismissed under Section 90.103 and refiled under Section 90.104 is
subject to the rules adopted by the supreme court under Subchapter
B.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect on the 91st day after the last day of the
legislative session.